from the 'education'-campaign dept

The history of anti-piracy activities by the legacy entertainment and software industries always seems to focus on the mistaken idea that if only the public were "more educated" piracy would magically go away. That's never been true. In fact, nearly every attempt at an education campaign hasn't just failed to work, it's often actively backfired and been mocked and parodied. And yet, if you talk to politicians and industry folks, they still seem to think that "more education" will magically work next time. One can only wonder what the hell the geniuses at the Software Alliance (the BSA -- which used to be the "Business Software Alliance" but has dropped the "Business" part, but not the "B" in its name) were thinking when they decided to "settle" with a guy who apparently uploaded some Microsoft software in the Czech Republic. The terms of the settlement required him to take part in a "professionally produced" anti-piracy video and that the video needed to get 200,000 views on YouTube or he might face having to pay damages in court.

The BSA is a well-known front for Microsoft, and has a long history of rather ridiculous claims about "piracy," so I guess it's little surprise that it's now engaged in out and out propaganda, but done so badly that it's turned the whole thing into a laughingstock. The whole "compelled speech" aspect of the settlement, including the requirement to get so many views, strikes basically everyone as ridiculous and stupid. Press attention has of course propelled the video to well over 200,000 thousand views at this point, and many of the YouTube comments are completely mocking the campaign -- and noting that they're watching the video to help the accused be let off the hook. The video is in Czech, but even so it's hilarious. It has the same sort of ominous production values as the old "You wouldn't download a car!" ads that have been mocked for years as well:

It really highlights just how out of touch folks at the BSA are, in that anyone actually thought this kind of thing would help it in any way, rather than making it a continued laughingstock.

from the welcome-to-politics dept

One of the issues with various "cybersecurity information sharing" bills like CISPA from last year and CISA from this year, is that some tech companies have been (quietly) supportive of these bills. The whole focus of these bills is to encourage "cybersecurity information sharing" between private companies and the government. And, in theory, that may sound like a good thing. In reality, all the bills really do is focus on protecting companies from liability should they share private information they shouldn't have shared. And, of course, there's the fact that people who understand these things recognize that there's a hidden meaning behind CISA, in that it's really designed to give the NSA more "signatures" to use in its surveillance dragnet.

But, of course, for many companies, the bill just looks like a "get out of court free" bill -- because the entire focus is on protecting those companies from liability. Some companies take a more long-term, customer- or public-centric view of things and recognize all this, and have not supported CISA. Others, however, have been more supportive. A few weeks ago, the BSA -- which is really the Business Software Alliance, but refers to itself as The Software Alliance -- sent a letter to Congress outlining some of the issues that its members were supporting. This included a bunch of reasonable and good things, like much needed ECPA reform. However, it also included this:

Cyber Threat Information Sharing Legislation will promote cybersecurity and protect sensitive information by enabling private actors in possession of information about vulnerability and intrusions to more easily share that information voluntarily with others under threat, thus enabling the development of better solutions faster.

Now, it's notable that this line does not directly endorse CISA. And it's pretty clear that's on purpose. Of the bullet points in the letter three of the other four all name specific bills that the letter is supporting. Leaving out specific support of CISA is an interesting choice and at least indicates some hesitancy among some of the companies signing onto the letter to actually support CISA in its current form.

Of course, the problem is that, right now, there are no real alternatives being offered, and politicians who support CISA can and will point to this letter to argue that "the tech industry supports CISA." And, with that in hand, the good folks at Fight for the Future kicked off a campaign called YouBetrayedUs.org, calling on the companies who signed the letter -- including Apple, Microsoft, Adobe, Symantec, Salesforce.com, Oracle and more to renounce the letter itself.

It appears that they've claimed their first scalp, as Salesforce.com has issued a press release saying they do not support CISA and have never supported CISA. The quote is from the company's chief legal officer, Burke Norton, who is the same representative who signed the letter:

“At Salesforce, trust is our number one value and nothing is more important to our company than the privacy of our customers' data,” said Burke Norton, chief legal officer, Salesforce. “Contrary to reports, Salesforce does not support CISA and has never supported CISA.”

And here he is on the letter:

Again, it's absolutely true that the letter did not directly support CISA. And it could have. As mentioned, most of the other bulletpoints list out bills by name and/or number. But the one on cybersecurity did not. Of course, one might argue that the BSA did this on purpose, knowing that if it cited CISA by name, all hell would rain down on them from the public.

Either way, perhaps this should act as a clear warning to tech companies that do want to support CISA. The public isn't going to like it very much. Similarly, this should provide further notice to companies in signing these kinds of letters that they should understand what it appears they're supporting as well.

from the hypocrites dept

For many years, we've written about the Business Software Alliance's (BSA) ridiculous snitch program. This is where the organization (which represents a bunch of software companies, but more or less takes its orders from Microsoft, Adobe, Apple and Autodesk) promises to give people large cash rewards for snitching on friends and colleagues who happen to be using unlicensed software. The BSA insists that this is one of their best tools -- which they then use to raid small companies for questionable "audits" that often completely destroy those businesses. The BSA forces those companies to pay huge sums of money -- all of which the BSA keeps. As for the claims of big rewards for snitches, the BSA is incredibly misleading on that front. A few years back, they started promising "up to $1 million" for snitching. In exchange, we promised "up to $1 million" if anyone could show the BSA actually paying out $1 million. Someone looking into the BSA's payments found that the highest they'd paid out to snitches at the time was around $5,000 with many getting less than that. In other words, the BSA has never had much of a reputation for intellectual honesty.

The good folks over at TorrentFreak have now also found that the BSA also appears to be a bunch of hypocrites as well. Having launched a new "snitch" campaign on St. Patrick's day, it appears that the organization failed to license the photo of the "pot of gold" it used on Facebook. Yes, that's right, on the very campaign where the BSA is asking people to snitch on unlicensed software, it appears to have used an unlicensed photo. The image appears to have come from CakeCentral.

When Torrentfreak reached out to the BSA about the licensing of the photo, suddenly the image disappeared from the BSA's Facebook page replaced by an image of an obviously fake pile of money. That seems fitting, given that their promises of giving people lots of money is equally bogus. Either way, the BSA is lucky that photographers don't have an equivalent organization that busts down doors and suddenly demands huge payouts. I'm sure it was just an oversight by the BSA and that some intern or someone failed to get the license. But, the BSA itself never forgives such minor "oversights" by the small businesses it destroys with its snitch campaign.

from the scared-of-something? dept

Last fall, we wrote about how the BSA, the Business Software Alliance, famous for being basically a Microsoft-front organization whose main job is to publish absolutely, hilariously misleading "piracy" numbers each year, had been taking on the issue of the so called "covered business method (CBM) patent" program that was being pushed in patent reform. The covered business method patent program is pretty straightforward. It allows certain types of patents -- currently financial patents -- to undergo a faster review, allowing the USPTO to dump bad patents faster. Senator Chuck Schumer, who had put the original CBM tool into the last round of patent reform, is now championing expanding it to cover software patents as well. While very heavy lobbying from Microsoft (and some from IBM) convinced the House to drop the plan from its patent reform bill, there's still a battle in the Senate, and Schumer doesn't show any interest in giving it up.

And there's no reason for him to do so. As he's noted, the use of the CBM program has already shown that this works. It has helped dump some bad patents and hasn't created any massive damaging consequences anywhere else. But you wouldn't know that to read the latest
laughable BSA letter on this program, as they kick off their attempt to get the Senate to drop the CBM program as well. According to the BSA, since the original CBM program was just a test, it must always remain that way:

During Congressional consideration of the AIA, proponents of Section 18
argued that it was a necessary and temporary measure to review a very narrow class of
financial-services-related patents. However, recently-introduced legislation proposes to
make the transitional proceedings of Section 18 permanent and expand the definition of
“covered business method patent” to include data processing patents used in any “enterprise,
product, or service.” This means that any party sued for or charged with infringement can
always challenge an extremely broad range of patents at the USPTO. The request for a
proceeding need not be related to financial products or services and can be submitted any
time over the life of the patent. This proposal would eviscerate the delicate balance that was
struck with the other new post grant review programs in the AIA to ensure that patents would
not be devalued by limiting serial challenges during the patent’s life.

Got that? The BSA (really: Microsoft pulling the puppet strings) is claiming that because Schumer agreed to use the CBM program as a test in the last round of patent reform (the AIA), that going beyond that would "eviscerate the delicate balance." Uh, no. The purpose of the test was to see if this program worked. And now that we see it has worked, it should absolutely be expanded. But, no, no, no says the BSA letter. If patents could be challenged, companies wouldn't make software any more and that would destroy pretty much the entire economy. And put us all in danger.

This would have far-reaching implications, because data processing is integral
to everything from cutting-edge cancer therapies to safety systems that allow cars to respond
to road conditions in real time to prevent crashes. Subjecting data processing patents to the
CBM program would thus create uncertainty and risk that discourage investment in any
number of fields where we should be trying to spur continued innovation.

Got that? If you actually review our patents to make sure they're not shit, you might die in a car crash. This is the most asinine argument I've seen from patent lovers in a long time -- and I've seen an awful lot of asinine arguments. First off, the idea that someone won't invest in writing a piece of software because of the possibility that (1) they might get a patent and (2) at a later date that patent might be challenged and (3) if that patent is crappy, that it might get thrown out, is so stupid that it doesn't pass the most basic laugh test.

And, of course, this leaves out the most important point: if the patents are valid, the CBM program will quickly find them to be valid and they're no worse for wear. The only time CBM will have a serious negative impact on a company is if that company has a ton of really, really shitty patents that they want to use to shake down innovators. So, go ahead and take a look at the list of companies who signed onto this letter, and you've got a list of companies looking to abuse the patent system to shake down innovators with their own crappy patents. And they're basically admitting that their patents are so bad that they can't survive a basic review by the Patent Office.

Then we move on to historical revisionism:

The US patent system for more than 200 years has succeeded spectacularly in
promoting “the progress of science and useful arts,” as the Founders intended, in part
because it has always provided the same incentives for all types of inventions. To expand
and make permanent the CBM program would be to turn ill-advisedly and irrevocably in a
new direction — discriminating against an entire class of technology innovation.

This is hilarious. First of all, anyone who is intellectually honest (note: the BSA has never been even remotely intellectually honest) has to admit the nature of the patent system has changed drastically in the past few decades, in particular with how it deals with software. And if there's a "discrimination against an entire class of technology innovation" it's clearly with the current patent system that has pretty much guaranteed that no company can innovate successfully without facing threats from patent holders demanding cash over bogus patents.

Frankly this whole letter is pretty disgusting. It's clearly the work of Microsoft, via the BSA as its sock puppet, and the argument makes absolutely no sense except if you have a ton of crappy patents. Hopefully the Senate won't give in the way the House folded.

from the acta's-back dept

A few months ago, we quoted the EU trade commissioner Karel De Gucht, who is responsible for handling the TAFTA/TTIP negotiations on the European side, as saying:

"ACTA, one of the nails in my coffin. I'm not going to reopen that discussion. Really, I mean, I am not a masochist. I'm not planning to do that.

If the Commission advances new basic legislation, which I think she should, we will revisit the question, but I'm not going to do this by the back door".

Well, either that was just more misdirection, or he's not in control of his staff. Because we learn from a stunning report of a little-publicized meeting between corporate lobbyists and the EU's negotiator on intellectual monopolies, Pedro Velasco Martins, that putting many of the worst features of ACTA into TAFTA/TTIP is precisely what the European Commission has planned.
Here's the background:

Taking place at the American Chamber of Commerce offices in Brussels, the purpose of the two hour exchange was to strategize between businesses and the Commission in order to make sure that the maximum level of new IP restrictions will be written into the treaty. Present at the meeting were representatives from a range of the very largest multinational corporations. Among these were TimeWarner, Microsoft, Ford, Eli Lilly, AbbVie (pharmaceutical, formerly Abbott) and the luxury conglomerate LMVH. The participant list also included representatives from Nike, Dow, Pfizer, GE, BSA and Disney - among others. Also present
was Patrice Pellegrino from OHIM [Office for Harmonization in the Internal Market], the EU/Commission agency responsible for trade marks in the EU.

As you will notice, most of those companies are from the US. Nothing wrong that, of course, except when you consider the following:

Controversially, the supposedly neutral Commission negotiator and the OHIM representative not only defined themselves as allies with the businesses lobbyists. They went far beyond this and started to instruct the representatives in detail on how they should campaign to "educate" the public in order to maximise their outcome in terms of industry monopoly rights. In particular, concerns from elected representatives, such as the European Parliament -- as well as civil society criticisms about ever increasing intellectual property rights -- were to be kept out of the public debate.

Here's what the European Commission really wants to see in TAFTA/TTIP:

Commission negotiator Velasco Martins revealed the existence of a secret list of corporate demands for new intellectual property rights in the transatlantic treaty. Previously -- towards the public and the Parliament -- the Commission has created the impression that intellectual property rights will be downplayed. The only IP right mentioned has been geographical indications, a minor issue which few are concerned about. In reality, the Commission now revealed that they have received "quite a Christmas list of items" on IP from corporate lobbyists and that they are working to implement this list. The list has already been discussed with the US in several meetings, in person as well as online.

The Christmas list covers almost every major intellectual property right. On patents, industry had shown "quite an interest" especially on the procedures around the granting of new patents. On copyrights the industry wants to have the "same level of protection" in the US and EU; in reality this always means harmonization up which results in more restrictions for the general public. On plant variety rights the pharma sector has lobbied for "higher levels" of protection. On trademarks the corporate lobbyists had made classification-related requests to the Commission. Additionally there had been a lot of interest in trade secrets.

There's also stuff from our old friend ACTA -- stricter enforcement:

According to the negotiator, the most repeated request on the Christmas list was in "enforcement". Concerning this, companies had made requests to "improve and formalize" as well as for the authorities to "make statements". The Commission negotiator said that although joint 'enforcement statements' do not constitute "classical trade agreement language" -- a euphemism for things that do not belong in trade agreements -- the Commission still looks forward to "working in this area".

Since the beginning of the TTIP negotiating process, it is very clear that the eventual agreement on intellectual property rights will not include elements that were controversial in the context of ACTA. For example, the ACTA provisions on IPR enforcement in the digital environment (ACTA articles 27.2 to 27.4) will not be part of the negotiations. Neither will ACTA's provisions on criminal sanctions.

The report of the meeting contains many other fascinating insights into the real thinking of the European Commission. For example, apparently there is some relief that people are focusing on the horrors of corporate sovereignty, since that has allowed work on the "corporate Christmas list" to proceed unnoticed. There was also a warning that it is probably only a matter of time before details get out:

"Lots of people are waiting for the first slip, the first leak"

In the wake of the good things that have already flowed from Edward Snowden's leaks, and the enhanced status of whistleblowers today, that seems increasingly likely to happen. Finally, there was a useful hint of how the European Commission is going to attempt to justify bringing back ACTA in TAFTA/TTIP:

A recurring theme was that the public needs to be re-educated to understand the value of industry monopoly rights.

According to Pellegrino, the key to doing this is a number of pro-IP reports that will or have been released by OHIM.

One recent report was highlighted. It claims that every fourth job in the EU only exists because of intellectual property regulations.

Techdirt wrote about this back in October, where we pointed out that it obtains these unrealistically high figures by including a whole range of industries that use things like copyright and patents only in the most limited and tangential way. Expect to see more of these exaggerated claims, based on similarly shoddy methodologies, appearing in the next few months.

That OHIM is putting out such propaganda isn't perhaps too surprising -- it's just a form marketing for its activities. But what is shocking is that an OHIM representative, along with the most senior EU negotiator for intellectual monopolies, should be offering detailed advice to US companies on how to subvert the TAFTA/TTIP negotiations by trying to keep the dissenting views of Members of the European Parliament and EU civic groups out of the debate. That's a direct assault on fair and open discourse, and ultimately undermines European democracy at a time when many are calling into question the entire idea of the European Union.

At the very least, the European Commission should set up a formal inquiry into what happened at this meeting, to make sure such blatant favoritism is avoided in future. If it doesn't, we'll know definitively that not only is it happy to see corporates on both sides of the Atlantic given preferential treatment during TAFTA/TTIP, but that it really doesn't care who knows. Meanwhile, those who took to the streets of Europe to fight off ACTA last year may want to start getting their boots ready.

from the one-law-for-the-rich,-one-law-for-the-poor dept

One of the key problems with TAFTA/TTIP is the same one that plagued ACTA and has recently been highlighted with TPP: the complete lack of any meaningful transparency. However much the negotiators may claim that transparency is important to them, there's no evidence to support that view. Or perhaps the politicians think the existence of conferences like one being held in Brussels next January provide enough opportunities for anyone who wants to convey their views to the EU's Chief Negotiator, say. He'll be attending, along with several other senior European Commission officials, according to the program.

We realise the importance of including all groups in the discussions at our events, and will always do our best to ensure that nobody is excluded due to not being able to afford the conference fee.

If you find the charge for tickets a barrier to attending, please let us know and we will endeavour to come to an arrangement to facilitate your participation. Please note however that this applies to individuals, unfunded academics/students and representatives of small charities, not businesses, individuals funded by an organisation, or larger charities/not-for-profit organisations.

That's to be commended, because otherwise members of the public whose means are very limited are inevitably excluded from such important opportunities to make their views known to key political figures in the TAFTA/TTIP negotiations (although they still have the cost of getting to Brussels...) But there's one area where money most certainly talks at this conference. The "Sponsorship Prospectus" (pdf) spells out some of things that can be bought. For example, for a mere €4000, you can be "Exclusive Host of VIP & Speaker Dinner" with the following benefits:

Opportunity to speak during dinner debate
Three-course dinner for speakers and high-level invited guests
Three seats at dinner reserved for your representatives or guests
Corporate identity displayed in dining area during dinner
Corporate identity included on menu cards
Full page advert in programme
3 complimentary delegate places

Then there are really major sponsorships that aren't even up for grabs -- things like becoming the conference's "Platinum Sponsor", which turns out to be the Business Software Alliance (BSA). I wonder what the BSA receives in exchange for that sponsorship: special access to some of the key people taking part, certainly, and probably the EU's Chief Negotiator too. Given that the BSA was originally in favor of SOPA, we can guess what its representatives at this conference will be saying to him when they meet.

And that's the real problem here. Those able to pay for sponsorship are granted a level of direct and concentrated access that the mere conference plebs -- even if admitted free of charge thanks to the organizer's laudable generosity -- will never enjoy. That might not matter if there were plenty of other ways for the public to make their views known to the TAFTA/TTIP negotiators, but as we know, there aren't any.

Which means that the vast disparity in influence that exists between the rich and powerful who already have an inside track to TAFTA/TTIP officials, and the hundreds of millions of people in whose name the negotiations are supposedly being held, will be made even greater by events such as the one taking place in Brussels next year. That's not the fault of the conference organizers, of course, but it's certainly is the fault of the US and EU politicians that mouth platitudes about TAFTA/TTIP's transparency while failing to put into practice.

from the even-if-we-take-the-bogus-stats-at-face-value dept

Well, here we go again. Earlier this week, the IIPA (a sort of uber copyright maximalist lobbying group, made up of other copyright maximalist lobbying groups, including the MPAA, RIAA, BSA, AAP, NMPA, ESA and IFTA) released a new report on the economic impact of "the Copyright Industries." This report comes out every few years, written by the copyright maximalists' favorite economist, Stephen Siwek, who is well known for both these reports and another set of reports in which he tries to calculate "losses" due to infringement using the most ridiculous and misleading methodology imaginable. This report is slightly different. There's not much in the way of direct methodology: he's basically lumping together a bunch of industries as "core copyright" industries, and presenting some stats around them. There are also the "partial copyright" industries, which are kind of laughable, since it includes things like "furniture."

The report is incredibly misleading (and is being used in a misleading way), but we'll get to that. Instead, let's start out by taking the report at face value, and assuming that it is accurate. The claim that the backers of the report (including NBCUniversal, which funded it) are latching onto is the big round number: the claim that:

for the first time,
the contribution of the core copyright indus-
tries of the U.S. economy surpassed one trillion
dollars in 2012

One Trillion! Big number. So big that the IIPA was even able to get the head of the Copyright Office, Maria Pallante, to highlight it in her presentation that coincided with the launch of the report. She apparently put that number on a single powerpoint slide and asked people to remember that number.

As we'll describe, that number doesn't actually say what Pallante and others are pretending it says, but even if it did... doesn't it suggest that the industries are doing fine? Even as infringement has continued to be a major issue, and there are new ways to share content around the globe, the data in the report suggests that the "core copyright industries" have continued to grow and thrive at a very consistent pace -- completely contrasting the supposed doom and gloom these same folks tell us about how piracy is supposedly killing these industries.

Instead, the report shows a steady increase in revenue within these industries, a steady increase in employment and a steady increase in the salaries of those employed in those industries -- in which they make more than people in many other industries. Basically, every chart in the report suggests that the "core copyright industries" are thriving, especially compared to the wider economy. Take, for example, the compensation chart:

And yet, during those same years, we were being told, repeatedly, that those industries were dying, that jobs were going away and that we needed much stricter new copyright laws. This chart seems to debunk all of that.

But... of course, that's not how the IIPA and its supporters are spinning this report. Instead, they're using it to argue that "the core copyright industries" are "so important" to the US economy that they need to new laws and protection:

"This study represents a milestone," said Steven J. Metalitz, counsel to the IIPA. "In order to preserve and enhance jobs, exports and economic contributions, it is critical that we have strong legal protections for U.S. creativity and innovation in the U.S. and abroad."

[....] "This report makes it crystal clear that workers in the creative industries make a huge contribution to America's economy," said Matt Loeb, international president of the International Alliance of Theatrical Stage Employees, which represents crew members on movies and TV shows. "It also underscores the urgent need to do more to build, strengthen and protect employment in this dynamic part of our nation's economy."

But... neither of those claims follows from the numbers presented. If these people knew anything about basic economics, they'd know that protectionism doesn't help grow markets -- it constrains them. The way you "strengthen" employment in these markets is by allowing competition and innovation to flow, which is the exact opposite of the legal regime they're pushing for. Of course, everyone knows what this is really about. The report is supplied by a few legacy players in this space, the ones threatened by innovation and upstarts. It's being pushed by the gatekeepers who don't want to compete. They don't want there to be more competition and innovation, because that tends to allow artists and creators to go direct -- and not to have to rely on gatekeepers, who take an 85% cut of all revenue.

Even worse, the report is incredibly misleading -- in effect allowing Siwek, the IIPA, Maria Pallante and other copyright maximalists to blatantly use the success of others who did not rely at all on copyright to support their notions that we need more copyright. That's because of a basic fact that is totally ignored in the report: just because you produce "copyright" covered content, it does not mean that you needed copyright to do so, or that you require copyright laws to do so. Instead, the report and its supporters are falsely claiming that every bit of revenue from the "core copyright industries" is because of strict copyright law. That's provably false. Hell, technically, the revenue that this very site that you're reading now produces is almost certainly included in that "$1 trillion." We're very much a part of the "core copyright industries." And yet we don't rely on copyright. At all. In fact, we dedicate all of our content to the public domain.

And it goes beyond that. A significant portion of the revenue they're discussing actually comes from computer software:

But that's an industry where there's tremendous support for changing copyright laws so that there's less protection and more sharing. The growth of the open source movement, and the fact that it powers so much of what we do today, is hardly an argument for stricter protectionism and ratcheting up copyright laws. But, by lumping them all in as "core copyright industries" and then pretending that means you need strict copyright laws to create that content, Siwek, his funders and their friends get to actually use the innovations and business models that show why stricter copyright may be a bad idea... to argue for stricter copyright law.

It's not just blatantly dishonest, it's co-opting the economic activity that disproves their argument to pretend it supports their argument. That Maria Pallante would quote that number and support it suggests serious problems in how the Copyright Office views things today. This kind of report has no business being taken seriously, let alone being used in any policy arguments at all. But, if it is, at the very least, people should point out that, if taken at face value, it pretty clearly shows that the copyright maximalists have been flat out lying about their industries struggling, and how they need things like SOPA, TPP and other legal changes.

from the nice-try,-act dept

A few months back, we wrote about how two different groups had sent letters concerning a key part of Rep. Bob Goodlatte's proposed patent reform bill: the "covered business methods" program (CBM), which allows for a much faster process for challenging and rejecting bad patents. A very narrow version of this program was introduced in the 2011 America Invents Act, but only for financial services patents. One of the ideas that many people support is expanding this program to software and other business method patents. It's difficult to think of a reason to be against this unless you have a ton of really bad patents. As we noted in that original article, the App Developer's Alliance -- a trade group representing an awful lot of app developers (and, it should be noted, a sponsor of our site), sent a letter signed by hundreds of app developers asking Congress to expand this program. On the flip side, there was a bunch of old stodgy companies that have seen their innovative days disappear into the past: Microsoft, IBM, Qualcomm. Companies that have become reliant on abusing the patent system to keep out competition, rather than continuing to innovate.

That letter was actually put together by the BSA (the "Business Software Alliance"), a trade group that pretends it represents "the business software industry," but which everyone knows takes its marching orders from Microsoft. In a recent interview with a BSA official, Tim Lee at the Washington Post pointed out that Microsoft seems very opposed to the expansion of CBM, and suggests that Microsoft is driving the BSA's position against this. He also points out that there's an obvious reason for this: Microsoft has a ton of low-quality patents that it doesn't want to lose. The BSA official tries to tap dance around the whole thing, but doesn't make much sense. Basically, they don't like CBM because there are other ways to deal with bad patents -- even though those aren't working.

Of course, Microsoft is not exactly known for attacking on a single front. Another well-known Microsoft front group is a group called ACT, the Association for Competitive Technology, which calls itself a "grassroots advocacy organization" representing "small and mid-size app developers," despite the fact that the organization only seems to reflect Microsoft's interests. ACT has also set up a related organization specifically for app developers, called "ACT 4 APPS" which looks like it's trying to be what the App Developer's Alliance actually is, but without actually caring what actual app developers want. For example, last week, it sent a letter to Goodlatte arguing against CBM, just like the BSA, but in complete contrast to the App Developer's Alliance. The App Developer's Alliance has hundreds of names signed onto their letter in favor of expanding CBM and being able to knock out bad patents quickly.

In contrast, ACT 4 APPS' letter could only turn up 14 signatures. And almost all of them appear to have some sort of close connection to... (you guessed it)... Microsoft. One of the signatures is from a former ACT employee, who appears to have just left a few months ago. And with at least ten of the other signatures, they appear to be Microsoft partners. Hell, the CEO of District Computers is involved in so many Microsoft efforts it's tough to keep track of them all:

Steve is currently is one of Microsoft's 21 Worldwide SMB Partner Area Leads (PAL); one of the three in the North American Region, representing the United States. He sits on the Microsoft US Small Business Specialist Community Partner Advisory Council (PAC). Also Steve is active on the U.S. Board of the International Association of Microsoft Channel Partners (IAMCP), while maintainting the role of the president of the DC Chapter of the same organization.

Also, most of the companies on the list appear to be IT shops, helping companies set up (of course) Microsoft software and systems, rather than what most people think of as actual "app developers." And many of them are based in DC, rather than around the country. Real "grassroots."

When you look at the letters from the BSA and from ACT, it seems pretty clear that Microsoft is deathly afraid of this accelerated review of crappy patents, and it's getting various groups to "front" that effort with letters to Congress. But when you dig deeper into those letters and look, it's pretty clear this is just Microsoft knowing that an awful lot of its patents are likely to be of very low quality, and easily challenged under such a program. Next time, perhaps Microsoft should focus on actually innovating, rather than betting so much of its strategy on shaking down companies with weak patents.

from the shameful dept

This was rumored for weeks before the former White House IP czar (technically "Intellectual Property Enforcement Coordinator") even had announced that she was stepping down from her job, but now it's been confirmed: just weeks after leaving the White House, Victoria Espinel will take over as the head of the Business Software Alliance, a group with a shameful past of overaggressive anti-piracy and pro-software patent positions, driven in large part by legacy software companies long past their innovation stage, and well into their "litigation" against innovators stage. The organization tends to take its orders mainly from Microsoft and Autodesk, two proponents of very strong copyright and patent enforcement, because it helps those legacy companies ward of competitors and disruptive innovators.

As you may recall, every year the BSA puts out a laughably ridiculous "global piracy study" that argues every infringing copy should count as a "lost sale." The BSA has a long history of using those reports to mislead the public and policy makers. The BSA also has a long history of raiding companies, tying them up in ridiculous "audits" where if you can't find the specific paperwork for the software you licensed years ago, you may be forced to pay huge sums. The organization has been widely criticized for the practices which often push small businesses to the edge of bankruptcy just because they can't find the right paperwork. The program also relies on bribing employees and former employees to rat out their companies based on completely bogus promises of payouts of "up to $1 million," when they almost never pay out more than $5,000. We once promised to pay out "up to $1 million" if anyone could prove a BSA $1 million payout. We never had to pay out a dime.

The BSA also, of course, was a strong supporter of SOPA until Microsoft realized that its users were angry and that SOPA might cause tremendous problems for the internet... and magically, the BSA suddenly changed its mind. The BSA has always had a close relationship with the federal government, of course. For years, its "anti-piracy" efforts were run by Neil MacBride who, like Espinel, once worked for Joe Biden. MacBride left the BSA after President Obama was elected to become the a top Justice Department official, later switching to become the US Attorney for the Eastern District of Virgnia, where he's been involved in a number of high profile cases, including those involving copyright enforcement -- such as the case against Kim Dotcom and Megaupload. Just last week MacBride announced he was stepping down.

It is worth noting that, while I often disagreed with the position of the administration and Espinel on IP enforcement issues, she was much more willing to actually listen to complaints and have pretty open and wide ranging discussions on the issues. In the time she was in office, she was more than willing to reach out and discuss concerns and complaints that I and others had raised about the administration's positions, and some of her more recent efforts showed that she was certainly willing to take such constructive criticism into account. I hope that she will be willing to do the same in this new position, but I have concerns, since the role is not about pushing for the most effective policy position, but the one that benefits a few giant legacy companies the most. And the BSA is so tainted on that front, it would take a pretty miraculous shift to make the organization a "good" player on these issues.

Of larger concern: Espinel was intimately involved in a number of the discussions on "voluntary" agreements between various industries over how to deal with copyright infringement, meaning that she knows quite well the positions and plans of those whom she now may be fighting against in her new role, where she obviously has strong connections to those still in the government. Considering the massive concern about the "revolving door" between IP maximalist organizations and the government, the risk of bad results here seems quite high. Espinel was quite successful in bringing in a variety of viewpoints and trying to find common ground. Unfortunately, that's not what her new position likely calls for.

from the please-get-this-right dept

The Supreme Court will be hearing a big patent case tomorrow. We wrote about it back in 2011 when the federal circuit appeals court (CAFC) put forth an absolutely horrible ruling basically saying that a farmer who legally purchased "community seeds" that included (legally) some Monsanto "Roundup Ready" seeds, violated Monsanto's patent. The case is a bit complex, but I'll just rerun my summary from back then:

The farmer, Vernan Bowman, bought official Monsanto seeds and planted his crops. Yet, Monsanto has rules that say you can't re-use "Roundup Ready" seeds, but you can apparently sell "second-generation" seeds to grain elevators for use as "commodity seeds," and doesn't require that there be any restriction on the sale. Bowman later bought a bunch of such "commodity seeds," which included some Roundup Ready seeds, and some that weren't. Bowman was able to determine which of the plants came from Roundup Ready seeds... and then saved those seeds for replanting. Monsanto claimed this was infringement, even though the seeds were legally sold to the grain elevator and then from the elevator to Bowman without restrictions. On top of that, while Bowman had signed an agreement for his original seeds, he did not with this batch (and, indeed, even Monsanto admits he didn't break the user agreement -- just patent infringement for using the seeds).

As we noted at the time, this seemed to be a clear case of patent "exhaustion," which the Supreme Court has supported in the past. Under patent exhaustion, once you sell a "licensed" offering, reselling it further down the supply chain does not infringe on the patent, since the initial purchase was authorized and the patent holder's rights over that specific product have been "exhausted." CAFC said exhaustion didn't apply here because the seeds are "new." That seems like a very troubling interpretation, and hopefully the Supreme Court (yet again) smacks a bad CAFC patent ruling down.

Lots of big farms have come out in support of Monsanto and, tragically, so has the federal government (pdf). Believe it or not, the Business Software Alliance (mostly a Microsoft front) has alsosided with Monsanto (pdf), ridiculously arguing that a ruling against Monsanto could "facilitate software piracy on a broad scale." That makes no sense, especially since software "piracy" is a copyright issue, not a patent issue. However, they're arguing that people will interpret this to mean that "temporary additional copies" of software are made all the time (i.e., in RAM) and somehow that leads to piracy. Having read the brief a few times, they never really explain how they make that leap in logic, but they sure do bring up the totally debunked bogus stats about how copyright infringement is costing the industry "billions."

The case really is ridiculous on many levels, but seeing how much firepower has come out in support of Monsanto (basically tons of big companies, lawyers groups and the US government), you can see that a lot of people have a lot of money tied up in keeping this broken system in place. Hopefully the Supreme Court sees through all of that and realizes that this entire case is ridiculous.